SINGH (Migration)

[2018] AATA 3302

SINGH (Migration) [2018] AATA 3302 (4 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr GOPAL SINGH
Mrs MEENA RANI

CASE NUMBER:  1619217

DIBP REFERENCE(S):  BCC2016/2070681

MEMBER:M. Edgoose

DATE AND TIME OF

ORAL DECISION AND REASONS:          4 June 2018 at 3:43 pm (VIC time)

DATE OF WRITTEN RECORD:                13 August 2018

PLACE OF DECISION:  Melbourne, Victoria

DECISION:The Tribunal affirms the decisions under review.

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training sector) – Course enrolment – No evidence of certificate of enrolment – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 572.223

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 8 November 2016 to refuse to grant the visa applicants Student (Temporary) (Class TU) Subclass 572 visas under the Migration Act 1958 (the Act).

2. At the hearing on 4 June 2018 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. In relation to case number 1619217 in the applicant's name of Gopal Singh an oral decision is made for non-enrolment. 

4. This is an application for review of a decision made by a delegate of the Minister for Immigration on 8 November 2016 to refuse to grant you a Student (Temporary) (Class TU) visa under section 65 of the Migration Act, (the Act).

5. You applied for the visa on 16 June 2016 to undertake study in Australia.  At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses. Generally speaking, the subclass that can be granted to an applicant who applies as a student depends upon the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575), or whether the applicant has the support of the relevant Minister (Subclass 576).

6. The delegate in your case refused to grant the visa on the basis that you did not satisfy the requirements of clause 572.223(1)(a) of Schedule 2 to the Migration Regulations 1994, (the Regulations), because the delegate was not satisfied that you were a genuine student who intends genuinely to stay in Australia temporarily.

7. You appeared before the Tribunal today to give evidence and present arguments. 

8. You were represented in relation to the review by your registered migration agent. 

9. The hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

10. While the issue before the delegate was whether you are a genuine temporary entrant the issue before the Tribunal now is whether at the time of this decision you meet the enrolment requirements for a student visa.  This was explained to you during the hearing and you said that you understood.

11. With limited exceptions, none of which are relevant to the present case, the Regulations require for all subclasses of the student visa that at the time of decision an applicant must be enrolled in or be the subject of a current letter of enrolment in a course of study that is a principal course and is of a type specified for the subclass at the time of application.

12. On 8 May 2018 a written invitation to attend the hearing today was sent to you via your migration agent.  In that invitation you were requested to provide a copy of your current certificate of enrolment to the Tribunal at least 7 days before the scheduled date of the hearing.  A copy of the certificate was not provided.

13. At the hearing today you were again requested to provide the Tribunal a copy of your current certificate of enrolment.  You did not do so.

14. In your sworn evidence before the Tribunal you confirmed that you were last enrolled in a Diploma of Building and Construction Management and that the Confirmation of Enrolment was cancelled before the end date of 25 June 2017.  You further confirmed in your sworn evidence that you are not currently enrolled, nor do you have an offer of enrolment in any course of study in Australia and no evidence was able to be provided to the Tribunal.

15. Accordingly, there is no evidence before me that you are now enrolled in or have a current offer of enrolment in any applicable course of study.  Therefore, the current enrolment prerequisite for all student visa subclasses is not met.

16. Furthermore, there is no evidence that you meet the criteria for either of the remaining subclasses of Class TU.  You are neither supported by the relevant Minister as required by clause 576.229 nor have you made the visa application on the basis of being a student guardian.

17. For these reasons I have concluded that the decision under review should be affirmed. 

18. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa. 

19. It follows that the Tribunal also affirms the decision of the delegate in the case of the second named applicant. 

20. This decision is made at 3.43 pm on 4 June 2018.

    DECISION

21. The Tribunal affirms the decisions under review.

    M. Edgoose
    Member